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2 Vand. L. Rev. 301 (1948-1949)
Recent Cases

handle is hein.journals/vanlr2 and id is 319 raw text is: RECENT CASES
Defendants, who operated an illegal' boxing concession in connection
with their carnival, solicited plaintiff, an eighteen-year-old boy, to engage
in one of the matches for a consideration. Plaintiff in voluntarily participating
therein, suffered a broken jaw, a concussion of the brain and minor injuries.
There was no anger between the contestants, nor was the force used in excess
of that which is to be anticipated in such a contest. Action by the boy for
personal injuries and by his father for medical and surgical expenses. Held
(2-1), no recovery in either action on the ground that consent bars recovery.
Hudson v. Craft, 195 P. 2d 857 (Cal. App. 1948).
As a general rule, that to which a person consents is not esteemed in
law an injury. Volenti non fit injuria.2 Yet a majority of American courts3
have refused to apply this fundamental principle to assault and battery by
mutual consent, it being generally held that consent to engage in a mutual
combat which amounts to a breach of the peace is not a good defense in a
civil action for injuries received as a consequence, and that each participant
is civilly liable to the other.4 A minority of the courts, however, deny re-
1. CAL. PEN. CODE § 412 (1941) ; CAL. BUS. AND PROF. CODE §§ 18752, 18780 (1944).
Cf. Million, The Enforceability of Prize Fight Statutes, 27 Ky. L. J. 152 (1939).
2. He who consents to an act is not wronged by it. CAL. Civ. CODE § 3515 (1941) ;
Adolff v. Columbia Pretzel & Banking Co., 100 Mo. App. 199, 73 S. W. 321, 323 (1903) ;
Milliken v. Heddesheimer, 110 Ohio St. 381, 144 N. E. 264, 266 (1924); BRoom, LEGAL
MAXI s 217 (7th London ed. 1900).
3. Schwaller v. McFarland, 228 Iowa 405, 291 N. W. 852 (1940) ; Grotton v. Glidden,
84 Me. 589, 24 Atl. 1008 (1892); Morris v. Miller, 83 Neb. 218, 119 N.'W. 458 (1909);
Lewis v. Fountain, 168 N. C. 277, 84 S. E. 278 (1915); Colby v. McClendon, 85 Okla.
293, 206,Pac. 207 (1922) ; Wiley v. Carpenter, 64 Vt. 212, 23 Atl. 630 (1892) ; Strawn v.
Ingram, 118 W. Va. 603, 191 S. E. 401 (1937) ; Notes, 6 A. L. R. 388 (1920), 30 A. L. R.
199 (1924), 47 A. L. R. 1092 (1927).
4. Consent is generally a full and perfect shield when that is complained of as a
civil injury which was consented to .... But in case of a breach of the peace it is dif-
ferent. The state is wronged by this, and forbids it on public grounds. If men fight, the
state will punish them. If one is injured, the law will not listen to an excuse based on a
breach of the law. There are three parties here, one being the state, which, for its own
good, does not suffer the others to deal on a basis of contract with the public peace. The
rule of law is therefore clear and unquestionable, that consent to an assault is no justifi-.
cation. 1 COOLEY, TORTS 327 (4th ed. 1932). See also POLLOCx, ToRTs 159-164 (12th ed.
1923); PROSSER, TORTS 123 (1941). It has been held however, that consent to mutual
combat will prevent the allowance of punitive damages. Grotton v. Glidden, 84 Me. 589,
24 Atl. 1008 (1892); Morris v. Miller, 83 Neb. 218, 119 N. W. 458 (1909); Strawn'v.
Ingram, 118 W. Va. 603, 191 S. E. 401 (1937); Shay v. Thompson, 59 Wis. 540, 18
N. W. 473 (1884). Where both parties suffer injuries the procedure in some states allows
the defendant to offset his claim against that of the plaintiff. Brown v. Patterson, 214 Ala.
351, 108 So. 16 (1926); cf. Pelton v. Powell, 96 Wis. 473, 71 N. W. 887 (1897). For
criticism of the majority rule see Bohlen, Consent as Affecting Civil Liability for Breaches
of the Peace, 24 COL. L. REV. 819 (1924) ; 73 U. OF PA. L. REv. 74 (1924) ; 3 RocKY MT.
L. REv. 285 (1931); 22 MINN. L. REv. 546 (1938) ; 17 VA. L. REv. 374 (1931).

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